RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01257
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O3, Ordnance Officer, medically separated for “anxiety disorder,” with a disability rating of 10%.

CI CONTENTION:  The CI requests all conditions be considered.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determinations is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20071205	VARD - 20080721	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder	9413	10%	PTSD	9411	50%	20080305	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Anxiety Disorder.  According to the service treatment record (STR) and the mental health (MH) Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s anxiety disorder began in August 2007, 6 months before separation.  The CI presented to behavioral health clinic with complaints of sleep problems, always being upset and frequent crying.  The CI had been deployed to Iraq from December 2005 to November 2006.  Her responsibilities included clean-up of vehicles and their return to use.  In October 2006 she was involved with the clean-up of a vehicle involved in an IED explosion which killed three soldiers, and one of them was her good friend.   She reported intrusive memories of this incident.  She was concerned about being deployed again in December 2007, with part of her duties being mortuary affairs.  The CI also reported her most pressing complaint was that she had been harassed from “day one in the Army.”  She reported there had been rumors about her sexual conduct and she carried a loaded weapon because she was afraid of being sexually assaulted in Iraq.  The CI was diagnosed with anxiety disorder, not otherwise specified and started on psychotropic medication.  Additionally, she received a profile limiting her ability to carry a firearm and she had to be in a location that access to continuous psychiatric care.

At a 16 October 2007 MH visit, the CI reported that she was under investigation due to allegations about her conduct.  She still had some bad days when she felt depressed and had difficulty sleeping.  She had prescriptions for an antidepressant medication and sleep medication, but had not started taking them.  The CI was involved in a relationship and was planning to submit her resume to several large corporations in town.  The MH examiner noted the CI was appreciative that she was not going back to Iraq.  

The 10 October 2007 commander’s statement indicated that the CI’s performance had been outstanding.  Although the commander noted the CI had become increasingly emotional with extreme highs and lows at work, had made numerous errors, and in his opinion she was “no longer able to perform in her assigned MOS.”  She was moved to the rear Detachment pending her medical board.

The 19 October 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of sleep problems, fatigue, loss of interest and pleasure in activities, irritability, being emotionally detached, and passive suicidal ideation (SI).  The MH MEB examiner noted the CI had three counseling sessions so far with minimal symptom relief and she was on antidepressant medication.  Mental status examination (MSE) showed the CI had a variable affect depending on the topic of conversation.  The CI denied SI or homicidal ideations (HI).  There was no evidence of delusions or hallucinations (or other symptoms suggestive of psychosis), speech disturbance, cognitive impairment or other abnormalities.  The Axis I diagnosis was anxiety disorder, NOS with a Global Assessment of Functioning assignment of 55, which reflects moderate impairment on this scale.  

The 6 November 2007 MEB NARSUM examination, 4 months before separation, noted that the CI reported there had been approximately a 30% improvement since starting psychotherapy and medication.  She continued to report sleep problems, irritability, and crying spells, but denied nightmares or SI/HI.  The CI had just requested to be moved to a different unit due to the harassment issues.  She remained on antidepressant medication.  The MEB NARSUM examiner noted that the MEB MH examiner indicated the CI had “anxiety but not full blown PTSD.”  There was no MSE performed.  The CI stated that her MH condition impacted her performance because “I have problems with interaction with military officers and I can’t hold my tongue.”  The CI also related that her MH provider told her that “my stress is from being in the Army and that once I get out, then I can get back to being me.”

At the 5 March 2008 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the CI reported her depressive symptoms began when she entered the Army with symptoms of loss of interest and pleasure in activities, decreased energy, feelings of guilt and worthlessness, appetite disturbance with weight gain, and passive SI and were related to sexual harassment as noted above.  At the VA examination, the CI reported symptoms of intrusive thoughts, avoidance behaviors, and feelings of detachment, sleep problems, anger outbursts, difficulty concentrating and nightmares once per week of events during deployment.  She reported she was currently prescribed medication that she was not taking.  The CI related the incident of cleaning the vehicle in which her friend was killed.  The CI reported she had difficulty adjusting to military life from the beginning due to sexual harassment.  The VA MH examiner noted the CI had received a bronze star medal.  She was engaged to another active duty soldier.  The CI had been working as a mechanical engineer with a military contracting company since military separation and reported that her job was going very well and she denied any concerns about her ability to work at the time.  The MSE showed a dysphoric mood and a blunted affect.  She reported a one year history of passive SI, but no active SI/HI, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  However, the MH examiner deemed the CI’s insight and judgment were poor.  The Axis I diagnoses were Mood disorder, NOS and PTSD chronic.  The GAF assignment was 58, which reflects moderate impairment on this scale.  The VA MH examiner described the CI’s occupational and social functioning as “there are PTSD signs and symptoms that are transient or mild with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress.” 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the anxiety disorder condition 10%, coded 9413 (anxiety), citing the CI’s highly effective performance until her unit was selected for re-deployment to a combat zone.  Therefore, rated 10% for occupational impairment and decrease in work efficiency during periods of significant stress.  The VA rated PTSD with mood disorder, not otherwise specified 50%.  The VA noted the rating was not considered permanent but did not specifically cite §4.129.  
  
The panel noted that the VA diagnosed PTSD, while the MEB MH examiner diagnosed anxiety disorder, NOS.  Regardless of specific diagnosis, the panel considered whether the application of §4.129 was appropriate based on the evidence of a traumatic stressor in the service records.  The panel agreed that the stipulations of §4.129 were met in this case and therefore recommended a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  The panel turned to its rating recommendation at the time of placement on the TDRL and all members agreed there was no evidence to support a rating higher than 50% as required by §4.129 at the time of placement on the TDRL.  

The panel then turned to its permanent rating recommendation at the time of removal from the TDRL.  In this case the most proximate source of comprehensive evidence on which to base the permanent rating recommendation at the end of the 6 month TDRL period was the MEB examinations and the VA C&P examination 1 month after separation.  All panel members agreed that at the time of permanent separation, the §4.130 threshold for a 50% rating was not approached and the deliberation settled on arguments for a 10% versus a 30% permanent rating recommendation.  The higher rating of 30% requires evidence of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” due to  such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events.  All panel members agreed the CI’s condition at the time of separation did not support the higher 30% disability rating, and that her level of impairment was better described as occupational and social impairment decrease in work efficiency during periods of significant stress.  The CI’s OER reflected a high level of functioning following deployment until the CI’s unit was selected for re-deployment.  The commander’s statement noted that the CI did have a period of reduced work efficiency during this time of significant stress.  However, at the VA examination, 1 month after separation, the CI was already working at a military contract company and she reported she was doing very well.  Panel members agreed the evidence reflected transient impairment during a period of significant stress and a 10% permanent rating was appropriate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6‐month period on the TDRL with the mandatory minimum 50% rating (IAW §4.129) for the anxiety disorder condition and a permanent disability rating of 10% for the anxiety disorder condition, coded 9413.  

BOARD FINDINGS:  In the matter of the anxiety disorder condition, the panel unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 and a 10% permanent rating at months IAW VASRD §4.130.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior separation be modified as follows: TDRL placement at 50% combined for a period of months following the CI’s prior medical separation (minimum of 50% IAW 4.129) and then a permanent separation with severance pay by reason of physical disability, with a final 10% combined rating as indicated below:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder	9413	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009021 , XXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 50% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period no re-characterization of your separation or modification of the permanent disability rating of 10%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The constructive TDRL period will result in an adjustment to your pay providing you 50% retired pay for six months from the date of your original medical separation and then no re-characterization of your separation or modification of the permanent disability rating of 10% following the constructive six month TDRL period. 

	The accepted DoD PDBR recommendation has been forwarded to the 
Army Physical Disability Agency for required correction of records and then to the 
U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency,.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,